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2007 DIGILAW 946 (PAT)

Ajay Kumar Singh v. Kameshwar Kumar Ojha

2007-05-15

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the appellants and learned counsel for the respondents. 2. This appeal has been filed by the defendants against the judgment of affirmance passed by the learned court of appeal below. 3. Eviction Suit No. 16 of 1994 (32 of 1999) was filed by the plaintiffs-respondents for eviction of the defendants-appellants on the ground of default in payment of rent by the defendants-appellants and bonafide personal requirement of the plaintiffs-respondents with respect to the suit property, namely one room and a varandah, detailed in the schedule of the plaint. The said suit was decreed by the learned Munsif II, Darbhanga by judgment and decree dated 5th October, 2001. Against the said judgment and decree of the trial court, the defendants-appellants filed Evictioin Appeal No. 97 of 2001 which was dismissed on both counts by the learned Addl. District Judge, V, Darbhanga by his judgment and decree dated 7th of May, 2003, which are under challenge in the instant Second Appeal. 4. Relationship of landlord and tenant is admitted between the parties. However, according to the plaintiffs-respondents, the defendants-appellant are tenant of only a room and a varandah which are detailed in schedule of the plaint, whereas according to the defendants-appellants, they are tenants of the plaintiffs-respondents with respect to two rooms and a varandah including the suit premises. 5. Learned counsel for the defendants-appellants submits that their case that tenancy was with respect to two rooms and a varandah is supported by the finding of the trial court in paragaph 7(b) of its judgment. He further submits that prior to the filing of the Eviction Suit, the plaintiffs-respondents ousted defendants-appellants from one of the rooms and hence the suit for eviction with respect to tenanted premises cannot continue unless the defendants-appellants are put in possession of the room from which they were ousted. In support of his contentions, he relies upon two decisions of this court as well as a decision of Calcutta High Court, namely in case of Dalip Narayan Singh vs. Suraj Narayan Missir and Another, reported in AIR 1935 Patna 38, in case of Basti Ram Ramkumar and Ors. vs. Kesardeo Dokania, reported in 1961 BLJR 745 and in case of Nilkantha Pati vs. Kshitish Chandra Satpati and Others, reported in AIR 1951 Calcutta 338. 6. vs. Kesardeo Dokania, reported in 1961 BLJR 745 and in case of Nilkantha Pati vs. Kshitish Chandra Satpati and Others, reported in AIR 1951 Calcutta 338. 6. The aforesaid question has been considered in detail by the lower appellate court and he has found that one of the defendants while deposing as D.W. 19 has stated that their concern namely M/s Ajay Homeo Pharmacy had drug licence in the year 1986 in which two rooms and a varandah are mentioned, but although that was the best evidence for the defendants that they were in occupation of the two rooms and one varandah, but even that document was not produced as a piece of evidence by the defendant. It was also found that no valid material was produced by the defendants including Ext-J which could conclusively prove that two rooms and one varandah were in occupancy of the tenant-defendants. Furthermore, even according to the claim of the defendants one of the two rooms rented out to the defendants was demolished by the plaintiffs-landlords on 2.7.1994. However, the instant Eviction suit having been filed on 29.11.1994, the defendants had ample opportunity to challenge the said alleged demolition and ouster, but no material has been produced to show that they filed any civil case or any criminal case before any authority. In the said circumstances, I do not see any reason to interfere into the findings of the learned lower appellate that the tenancy was only with respect to one room and one varandah for which Eviction Suit in question had been filed. 7. So far the question of default in payment of rent is concerned, both the courts below have concurrently come to the conclusion that the defendants-appellants failed to pay the rent of May and June, 1994 within the stipulated period and therefore, they became defaulters in terms of Sec. 11(d) of the Act. These findings have been arrived at by the learned courts below after considering the entire materials on record as well as the pleadings of the parties and I do not find any justification to interfere with the said findings in this Second Appeal. 8. So far the question of personal necessity is concerned, both the courts below have arrived at concurrent findings that the plaintiff no. 8. So far the question of personal necessity is concerned, both the courts below have arrived at concurrent findings that the plaintiff no. 1 required the suit premises to start business of General Store after his retirement in 1993 and hence he has got bonafide personal requirement of the suit premises. The said findings are also based on correct and legal appraisal of the pleadings and evidence and require no interference by this court. Furthermore, when the eviction suit has been decreed on both the counts of default and personal necessity which have been affirmed by the lower appellate court, the plea of partial eviction as per the proviso to Sec. 11 (1)(c) of the Bihar Building Rent & Eviction) Control Act does not remain available to the defendant-appellant in a second appeal. 9. In the aforesaid facts and circumstances, I do not find any question of law much less any substantial question of law involved in this second appeal and accordingly, this second appeal is dismissed.